R v. Neil, 2022 QCCQ 10157

M.M. c. J.K. 2022 QCCQ 10157COURT OF QUEBEC CANADAPROVINCE OF QUEBECDISTRICT OF LABELLELOCALITY OFMANIWAKI“Criminal and Penal Division”No.: 565-38-000023-228 DATE: August 31, 2022______________________________________________________________________ PRESIDING: THE HONOURABLE SYLVAIN LÉPINE, J.C.Q. ______________________________________________________________________ M. M.Plaintiffv.J. K.Defendant ______________________________________________________________________ JUDGMENT______________________________________________________________________ [1] The plaintiff asks that the defendant’s attorney be disqualified to proceed in the case for witch plaintiff is seeking a recognizanceunder

section 810 of the Criminal Code. [2] The Code of Professionnal Conduct of Lawyers prescribes the obligation imposed on them to avoid any potential conflict ofinterest, and stipulates that a lawyer is in conflict of interest if he presents conflicting interests or interests of such a nature that it may bebrought to prefer some of them or that his judgment and loyalty may be adversely affected.

This same Code of Ethics states that lawyershave the obligation to safeguard their professional independence. [3] The Canadian Charter of Rights and Freedoms recognizes the right for an accused on having a fair and just trial and to do this, tohave the assistance of a loyal and competent lawyer on this occasion. By fair counsel, we mean that the defendant must be assured of theundivided loyalty of his lawyer who must have a free hand of any constraint which could hinder him in the full and complete defenseinterests of his client. This is what the Supreme Court of Canada points out in R v.

Neil, 2002 SCC 70 , [2002] 3 S.C.R. 631. [4] This duty of undivided loyalty of the lawyer towards his client not only protects him, but it is essential to maintaining the integrityof the judiciary system and the respect accorded to it by citizens, as stated by the Supreme Court of Canada in MacDonald Estate v.Martin, (SCC), [1990] 3 S.C.R. 1235. [5] Two important values ​​are present here: the desire to preserve the high standards of the legal profession and the integrity of ourjudicial system by preventing situations of conflict of interest, on one hand, and on the other hand, the duty of a litigant to retain theservices of the lawyer of his choice and not to be deprived of them without a valid reason. [6] To determine whether a conflict of interest situation exists, two questions arise as it was proposed in the Supreme Courtof Canada case Succession MacDonald c.

Martin, (CSC), [1990] 3 R.C.S. 1235, p. 1260: First, did the attorney learn any confidential facts, through prior attorney-client relationships, that relate to the subject matter of thelitigation? Second, is there a risk that this information will be used to the detriment of the client? [7] Mr.

Justice Sopinka, on behalf of the majority, adds the following with regard to the first question: In my opinion, as soon as the client has proven the existence of a prior link whose connection with the mandate of which the lawyer is tobe deprived is sufficient, the Court must infer that confidential information has been transmitted, unless the lawyer convinces the Courtthat no relevant information was disclosed. [8] In the present case the defendant is the plaintiff’s brother-in-law. [9] Me Barrette has been the plaintiff’s attorney in the past (almost 23 years ago) for an adoption file.

He also represented her twosisters and brother.

[10] He has great knowledge of intimate details of the plaintiff’s life and her family. The plaintiff testified that she was a friend of MeBarrette and it was reciprocal. He has asked to be relieved of professional secret from plaintiff to be able to represent the defendant. [11] He represented the plaintiff’s sister, Mrs. N. M., who testified that she had a conflict with her sister in a Youth Protection file. MeBarrette had to seize Mrs. M. for an unpaid bill.

These events seem to have occurred in 2008. [12] Justices Martin Vauclair of the Quebec Court of Appeal and Erick Vanchestein from the Quebec Court, define the conflict ofinterest in: Collection de droit 2015-2016 Volume 1 - Éthique, déontologie et pratique professionnelle

Titre I - Les règlesdéontologiques

Chapitre VIII - L'éthique et la déontologie en droit criminel : L'avocat peut se trouver en situation de conflit si un de ses associés a des intérêts opposés à ceux de son client ou s'il représente ou areprésenté un client dont les intérêts s'opposent à ceux de son client. Dans ce dernier cas, à moins de la démonstration du contraire, onprésumera souvent que l'avocat a reçu de son ancien client des informations confidentielles (comme dans SuccessionMacDonald c. Martin, (CSC), [1990] 3 R.C.S. 1235, p. 126), une présomption qui ne semble toutefois pas s'appliquerlorsque la représentation antérieure a été brève, routinière et superficielle comme, à

titre d'exemple, lors d'une remise en liberté deconsentement comme dans R. c. Desmond, 2010 ONSC 2945, par. 55. [13] The presumption is that Me Barrette received confidential information from the plaintiff in files regarding adoption and also othermembers of her family. Those files were not brief, routine or superficial. Even thought it was 23 years ago for the first file and 14 yearsfor the second file, it seems that there is no link between these files and the present case.

In fact, the plaintiff did not know the defendantat that time. [14] So at first glance, since there is no link between these cases, there should not be any problem for Me Barrette to assist thedefendant. But the relationship between Me Barrette and the plaintiff seems to be important, as the plaintiff testified to the effect thatthey consider themselves as friends. [15] In R v. W.

W. (ON CA), 1995 25 O.R. (3d) 161, the Ontario Court of Appeal clarified what was the applicablestandard in Canada regarding "any realistic risk", in French "un risque réel", of a conflict of interest. [16] Authors Michel Proulx and David Layton, in "Ethics and Canadian Criminal Law" published by Irwin Law Inc. in 2015, concludeby saying that the standard established in W. W. is not very demanding and that it seems that any conflict of interest scenario that couldreasonably arise during the trial is sufficient to justify disqualifying a lawyer. This is what Mr.

Justice Tardif of the Superior Courtrepeated in R. c. Walsh, [2008] J.Q. No. 5793, at paragraph 31, saying: […] I am of the opinion that there is a real risk that, in this case, by wanting to adequately represent an accused, Mr. […] could harm,even unintentionally, another accused client. This real risk may not be probable but, as we have seen, the bar is not very high.

It justneeds to be possible." [17] Moreover, when we balance the "real risk" of conflict of interest with the right of an accused not to be deprived without validreason of his right to retain the services of the lawyer of his choice, the authors Proulx and Layton argue that the standard established inW. W. makes it clear that the court must prioritize the need to avoid a potential mistrial or order of new trial over the interest of theaccused in retaining the lawyer of his choice. [18] Me Barrette is clearly and fully in conflict of interest in this case and cannot proceed as an attorney of defendant.

The defendant isbrother-in-law to plaintiff, she will testify and there is a realistic risk of a conflict of interest since he has had a friendship andprofessional relationship with the plaintiff and other members of her family. [19] Furthermore if the plaintiff’s sister Mrs. N. M. testifies, having been in a conflict concerning a bill for professional services in thepast, again the risk is realistic. THEREFORE, THE COURT: [20] DISQUALIFIES Me Jean-Pierre Barrette to act as attorney for the defendant in this case. __________________________________ SYLVAIN LÉPINE, J.C.Q.

Me Louis-André HubertCounsel for the Applicant Me Jean-Pierre BarretteCounsel for the Defendant

Date of hearing: August 9, 2022